Washington Supreme Court Limits Recreational Immunity Statute
In a decision of great importance to major Washington landowners, including local governments, major private landowners such as forest products companies, and operators of water projects, the Washington Supreme Court today issued an opinion
that may limit the state's recreational immunity statute
. As a result of the decision, the immunity conferred by the statute is clouded in mixed-use situations, where access to land is granted for both recreational and other uses, such as transportation. Camicia v. Howard S. Wright Constr. Co.
, No. 85583-8 (issued Jan. 30, 2014).
First passed in 1967, the recreational immunity statute is intended to encourage landowners to open lands, as well as waterways associated with hydroelectric projects and similar facilities, to recreational users. The statute encourages recreational access by immunizing those landowners from liability for unintentional accidents where no fee is charged for recreational access.
Today's decision involves a bicyclist who suffered a severe injury while cycling the I-90 bike trail on Mercer Island. In response to a lawsuit filed by the cyclist, the City of Mercer Island moved for summary judgment under the recreational immunity statute. Citing evidence that the bike path is part of the region's transportation system rather than a recreational facility, the cyclist argued that the statute does not bar her lawsuit. In today's decision, a five-member majority of the Supreme Court concludes that the conflicting evidence creates a factual issue about whether the bike path is a transportation route or recreational land, and that dispute precludes summary judgement. The Court concludes that "it is not enough for the City to show that the I-90 trail was opened for bicycling," but otherwise provides little guidance as to how cases of mixed recreational and non-recreational use will be resolved, punting the critical inquiries to the trier of fact.
Accordingly, the likely result of the Court's opinion in such mixed-use cases will be to limit the extent to which landowners can invoke recreational immunity on summary judgement. As the three-judge dissent, authored by Chief Justice Madsen points out, this result is difficult to square with the plain language of the statute. As a practical matter, it may create doubts that encourage landowners to deny recreational access, which is contrary to the statute's basic purpose.
Although the Court's primary holding may limit the extent to which recreational immunity can be invoked at the summary judgement stage, its secondary holding is likely to prove helpful to landowners. In this portion of its opinion, the Court rejects the argument that recreational immunity depends on the intent of the injured person to enter the property for recreational purposes. Instead, the Court concludes, the key question is whether the landowner
intends to allow access for recreational purposes. The Court reasons that, because landowners cannot control the intent of visitors who might have commercial or other purposes in mind when entering their land, the landowner's intent should be the only relevant factor. This holding will allow landowners to benefit from statutory immunity even if an injured recreational visitor might have some commercial purpose (for example, commercial mushroom hunting or transportation) in mind when taking advantage of the recreational access provided by the landowner.
If you have questions about the Washington Supreme Court decision discussed in this post, the recreational immunity statute, or other questions related to energy, environmental, land use, or natural resource issues, please contact a member of GTH's Energy, Telecommunications, and Utilities, Environment & Natural Resources,
practice groups. We are proud that our partner Jim Waldo was recently named Lawyer of the Year for Energy and Natural Resources Law. In addition, along with Jim, practice group members Don Cohen, Bill Lynn, Sal Mungia, and Brad Jones were all recently named among America's Best Lawyers for 2014.